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56 B.C. L. Rev. 493 (2015)
The Myth of the Double-Edged Sword: An Empirical Study of Neuroscience Evidence in Criminal Cases

handle is hein.journals/bclr56 and id is 493 raw text is: THE MYTH OF THE DOUBLE-EDGED SWORD: AN EMPIRICAL STUDY OF NEUROSCIENCE EVIDENCE IN CRIMINAL CASES DEBORAH W. DENNO* Abstract: This Article presents the results of my unique study of 800 criminal cases addressing neuroscience evidence over the past two decades (1992- 2012). Many legal scholars have theorized about the impact of neuroscience evidence on the criminal law, but this is the first empirical study of its kind to systematically investigate how courts assess the mitigating and aggravating strength of such evidence. My analysis reveals that neuroscience evidence is usually offered to mitigate punishments in the way that traditional criminal law has always allowed, especially in the penalty phase of death penalty trials. This finding controverts the popular image of neuroscience evidence as a double-edged sword-one that will either get defendants off the hook alto- < 2015, Deborah W. Denno. All rights reserved. * Arthur A. McGivney Professor of Law, Fordham University School of Law. This Article is the first in a series of publications based on my four-year project studying the intersection between neuroscience and the criminal law. I am most grateful to the following individuals for their contri- butions: George Conk, John Cording, Nestor Davidson, Michael Flomenhaft, Marianna Gebhardt, Daniel Goddin, Clare Huntington, Sonia Katyal, Ellen Koenig, Bruce Kreter, Michael Martin, Julie Salwen, David Tarras, Seth Tarras, Steve Thel, and Benjamin Zipursky. For insightful com- ments on earlier versions of this Article, I thank the participants in presentations given at the An- nual Meeting of the American Society of Criminology, Cornell Law School, Florida State Univer- sity College of Law, Fordham University School of Law, the International Society for the Reform of Criminal Law, Loyola University Chicago (School of Law and the Department of Criminal Justice and Criminology), New York University School of Law (Hoffinger Criminal Justice Col- loquium, Center for Research in Crime and Justice), Pace University School of Law, Southern Methodist University Dedman School of Law, SUNY Buffalo Law School (Buffalo Criminal Law Center), University of Richmond School of Law (Emroch Faculty Colloquy Series), Rutgers- Camden University School of Law (Rutgers Institute for Law and Philosophy), University of San Diego School of Law (Institute for Law and Philosophy), Syracuse University College of Law, the University of Texas School of Law, and Yale Law School. I give special thanks to a superb set of research assistants who worked at varying times during the course of this project: Maurice Aaron Neishlos, Adam Nicolais, John-Christopher Record, Faina Savich, Madhundra Sivakumar, Ariel Sodomsky, Erica Valencia-Graham, and Katherine Yi. Fordham Law School's library staff, par- ticularly Alissa Black-Dorward, provided continuously exceptional research support during the entire project. With characteristic talent, Madhundra Sivakumar and Robert Yasharian created the Article's charts. I am indebted to five sources for research funding without which this project could not have existed: Fordham Law School, the Proteus Action League, Atlantic Philanthropies, the Reynolds Family, and the Arthur and Charlotte Zitrin Foundation. Terence Lenamon gracious- ly provided helpful information on the Grady Nelson case. Members of the Boston College Law Review gave outstanding editorial assistance. Any mistakes or misjudgments are my own. 493

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